The question is not whether the Gujarat CM is guilty. The debate is whether his role in the 2002 riots can be nailed in a court of law, argues Ashish Khetan

On shaky ground Narendra Modi’s role in the 2002 riots will face more scrutiny

Photo: AFP

Since the pronouncement of the Supreme Court order by which the fate of Gujarat Chief Minister Narendra Modi has been consigned to an Ahmedabad trial court, the political debate has centred on whether the verdict amounts to a clean chit? While the fact remains that the nine-page order doesn’t even remotely suggest any exoneration for Modi and the amicus curiae in the case, Raju Ramachandran, has gone on record to say that it’s a gross and illicit inference to call the order a “clean chit”. Yet, the BJP spinmeisters have left no pebble unturned to paint the verdict a certificate of innocence and righteousness for Modi. As usual, the truth has been lost in the battle cry of an army of his propagandists.

Waiting for justice Zakia Jafri’s husband Ehsan was killed during the 2002 riots

Photo: AP

The biggest question now before the judiciary is not whether Modi is guilty or innocent. The 600-page inquiry report filed by the Special Investigation Team (SIT) before the Supreme Court last November has chronicled dozens of instances to establish that Modi’s conduct during and after the riots was partisan, communal and influenced by political and communal agenda. The debate now is whether Modi’s acts of omission and commission could be nailed in a court of law. And the challenge staring at the SIT is to correctly interpret the legal material facts and decide its future course of action. The Indian judicial system itself will be put through a litmus test as the case against Modi proceeds hereafter.

There are only two logical possibilities. Either the SIT will file a chargesheet against Modi and others and accuse them of hatching a larger conspiracy, or the probe agency will file a closure report, saying that they could not find prosecutable evidence against the Gujarat chief minister.

But even in the second scenario, the Supreme Court has ensured that the riot victims would get a chance to present their case before the trial court and then the final decision to frame charges would rest with the judge.

And even if the trial court judge, after listening to the victims, decides against framing charges and putting Modi on trial, the complainants would have the legal remedy available to approach the superior courts right up to the Supreme Court.

So anyone with a little common sense can see that Modi’s tryst with the law has only just begun.

On 12 September, Modi claimed in an open letter to fellow ‘countrymen’ that “the unhealthy environment created by the unfounded and false allegations made against me and the government of Gujarat after the 2002 riots has come to an end.”

Nothing could be further from the truth. Modi’s misery would have ended only if the apex court had dismissed the special leave petition by Zakia Jafri asking for an investigation into Modi’s role, and pronounced that hereafter there was no need for further judicial proceedings. But the court has not even remotely suggested that. Far from clearing Modi of the riots taint, it has asked the SIT to place its final report before the trial court in Ahmedabad trying the Gulberg Society massacre case.

And while doing so, the apex court has also ensured that the inconsistencies in the SIT’s first report, which despite finding Modi guilty on several serious counts, had concluded that “the substantiated allegations did not throw up material that would justify further action under the law”, are also redressed by the SIT before concluding its report.

Modi’s misery would have only ended if the SC had dismissed the SLP by Zakia Jafri asking for a probe into the Gujarat CM’s role in the riots

The SIT had notably found Modi guilty of illegally positioning two controversial ministers in the police control room, of making communally inflammatory speeches in the middle of the riots and thus sending a tacit signal to the government machinery, of giving lucrative postings to police officers who showed laxity while punishing those who tried to control the rioting mob, of appointing public prosecutors with VHP and RSS backgrounds in sensitive riot cases, of destroying crucial police control room records and at least on a dozen other counts, all of which displayed his communal and partisan conduct as chief minister.

As a chief minister, Modi didn’t need to patrol the streets with the violent mobs. All he had to do was look the other way and send such covert signals to the entire machinery that would have meant sanction from the top. All the direct and circumstantial material placed by the SIT proved that there was an unwritten writ to allow riots and once the carnage was over, to subvert the process of justice. But still the SIT had shown its unwillingness to proceed further.

After perusing the SIT report in March this year, amicus curiae Ramachandran had told the court that there is a mismatch between the findings of the SIT and their watered-down conclusions. The court then asked the amicus curiae to visit Gujarat and independently meet witnesses and do a comprehensive evaluation of all material facts collected by the SIT.

In July, the amicus curiae submitted an exhaustive report prepared after field visits to Gujarat. It’s widely believed that in his report the amicus has differed with the SIT on what constitutes prosecutable evidence and what doesn’t.

In its order, the apex court has stated that “before submission of its report, it will be open to the SIT to obtain from the amicus curiae copies of his reports submitted to this court”. Though the court has used the word ‘may’, legal experts believe that not only will the SIT have to address the issues raised by Ramachandran, they would also have to streamline their own findings with that of the amicus

“All lawyers know that ‘may’ can be read as ‘shall’ and vice versa,” says Ramachandran. “The intent and the purport of the order are clear and while the SIT would be perfectly within its rights to disagree with my report, I don’t apprehend that they will ‘discard’ it or not place it before the court if there is a disagreement on any aspect.”

IN THE days ahead, both the findings of the SIT and the amicus curiae will be legally debated and interpreted before the trial court. The revelation of incriminating findings would make headlines and would lead to an impassioned legal and constitutional debate on the larger issue of how top state functionaries could be penalised for their deliberate dereliction and moral turpitude.

Does this all sound like an end of the story of Gujarat riots and start of a paved road leading to 7 Race Course to you, Mr Modi? One wonders, how the pro-Modi faction within the BJP would build a consensus around his name for the post of prime minister, surpassing the likes of Nitish Kumar, Sushma Swaraj and Arun Jaitley (provided the NDA musters enough seats to garner a majority, which in itself is a big ‘if’).

‘There is no reason why the lower court will not do justice. The law has adequate remedies’

THE SC order directing the SIT to file its final report into the allegations of Narendra Modi being the architect of the 2002 Gujarat massacre before an Ahmedabad trial court has been interpreted as a relief for the Gujarat CM. Amicus curiae Raju Ramachandran tells Ashish Khetan that the order is neither an exoneration nor a clean chit for Modi.

Is the SC order instructing the SIT to place its final report or chargesheet before a trial court in Ahmedabad, a legal and moral victory for Narendra Modi?
As an amicus, I would not like to comment on the reaction of this side or the other. I’m, however, keen to see that the order is correctly understood. The SC order is an impeccable one. It upholds the rule of law. It protects the rights of both thecomplainant and the potential accused. The law will now take its course. My report contains an independent assessment of the material on record that was given after an interaction with relevant witnesses. The SIT report and my report would be before the trial court. I have no doubt it will act in accordance with law and that the ends of justice will be met. It is premature to talk of either clean chits or indictments.

The complainant’s two basic prayers — that a separate FIR into the aspect of larger conspiracy should be registered and the probe should be handed over to the CBI or an agency independent of the SIT — have both been turned down. Isn’t this a victory for the state government?
As far as the first prayer is concerned, it is no longer relevant since the entire material, after a statutory probe, has been directed to be placed before the appropriate court, along with the final report of the investigating agency. As far as the prayer for a CBI inquiry is concerned, the court has not found any need for it as the probe has been done by an SIT appointed by it. I see neither victory nor defeat for anyone in this.

In the history of SC legal activism, where do you think this order stands? A few senior lawyers have gone on record to say that the rule of law hasn’t prevailed.
I think this is — constitutionally and legally — one of the soundest orders passed by the SC in the context of a courtmonitored probe. For the reason that I have already given in answer to your first query: it fully protects the rights of both the complainants and the possible accused. It furthers the rule of law and I seriously disagree with lawyers who think otherwise.

In the first status report submitted in November 2010, the SIT mentioned that it was strictly a preliminary enquiry (PE) and not an investigation as envisaged under the CrPC. But this order says that the probe is now over and the trial court may take over. At which stage did the PE turn into a probe?
It has, both on its own and thereafter after my first report in January 2011. The subsequent probe was a full-fledged investigation in the already existing case of Gulberg Society massacre.

The SC in paragraph 8 and 9 of its order says: ‘In cases monitored by this court, it is concerned with ensuring proper and honest performance of its duty by the investigating agency and not with the merits of the accusations in an investigation, which are to be determined at the trial on the filing of the chargesheet in the competent court.’ Don’t these remarks imply that the sc believes that the probe carried out by the SIT pursuant to Zakia Jafri’s complaint has been fair and honest and the court is happy with the outcome?
The court has only reiterated the well-settled legal position that once a probe has been conducted and completed, there is no option except to forward the final report under Section 173(2) of the CrPC to the concerned court. The court has scrupulously refrained from commenting on the merits of the case or on the probe. There is therefore no question of the court being happy or for that matter, unhappy, with either the SIT’s report or the amicus’ report.

‘I think this is one of
the soundest orders
passed by the Supreme
Court in the context
of a court-monitored
probe. I disagree
with the lawyers
who think otherwise’

As the saying goes, not only must justice be done, it must also be seen to be done. So in that sense hasn’t the very purpose of this order been defeated if the victims view it as a wishy-washy judgment?
It is precisely because of this perception that I’m speaking to you, in spite of my initial reluctance, as amicus, to speak to the media. I have already explained the meaning and purport of the court’s order, and am clear that justice has been done.

Zakia has said that she is deeply unsatisfied and unhappy with the order. That she was expecting much more. She has also said that if SC can’t take a position then how it could be expected that an Ahmedabad trial court will do any justice?
I don’t wish to comment on the reported reactions of anyone. However, the SC is not a trial court, to ‘take a position’ on the merits of a case. ‘Taking a position’ by the highest court can cause irreparable prejudice to either the complainant or the potential accused, as the case may be. The court will not stand the criminal law on its head.

Given the state of judicial process in Gujarat and also in light of the observations made and orders passed by SC itself in this regard in the past, isn’t it too much now to expect a lower court in Ahmedabad to deliver justice?
When the SC refrains from commenting on the merits, there is no reason why a lower court will not do justice. Should there be cause for complaint at any stage in the future, the law has adequate remedies.

We all know that the SIT in its first status report had said that there was not enough prosecutable evidence to legally proceed against Modi. Now, in view of this SC order, how far is it reasonable to expect the same agency to reverse its stated position? Won’t all future probes and legal proceedings, if any, be impregnated with prejudice and inherent contradictions?
The reports are confidential till they are formally placed in court. From the court order, it is clear that my report will be considered by the SIT. If there is any difference between the SIT’s viewpoint and mine, I have no doubt that such different viewpoints would be placed before the court.

But one would logically assume that the SIT won’t reverse its stand. So doesn’t this order present a fait accompli for the victims and the complainant?
I wouldn’t assume that the SIT would not consider my viewpoint if there’s a difference between theirs and mine. If the SIT files a closure report, the law gives adequate rights to the complainant, so the idea of a ‘fait accompli’ is misconceived.

In cases of seminal public interest such as the Gujarat riots, what is the full scope of the role of an amicus curiae?
Originally, an amicus curiae used to be appointed by the court in criminal cases where accused or convicted persons were undefended. Such amicus were expected to play the role of defence counsel to the hilt. In other words, they were representing one side in an adversarial litigation with the understanding, of course, that a court-appointed lawyer would be fair to the court and would not adopt delaying tactics or otherwise seek to secure an acquittal by any means. Later, the court started asking senior and eminent counsel to appear as amicus curiae to assist them on complex questions of law even when the contesting parties were fully represented. With the advent of public interest litigation and with the court grappling with important issues like prison reforms, custodial deaths, the hawala case, forest cases, unauthorised constructions, etc, the role of amicus curiae has assumed much more significance. And that applies to cases like the present one as well. The amicus must not only be independent in the sense of being unconnected with the different parties to the litigation, but independent of his own likes, dislikes, predilections and prejudices. Apart from offering the specific kinds of assistance, the amicus has a duty to assist the court in following constitutionally legal procedures. While the amicus must assist the court to secure the ends of justice and to persuade the court to exercise its powers to the fullest extent, he must, if need be, also caution the court against exceeding its jurisdiction.

The court has used the word ‘may’ while referring to the amicus curiae report, which is your report, when referring to it in the strict sense of how SIT is going to use it. Don’t you think this gives the SIT the discretion to discard your report?
All lawyers know that ‘may’ can be read as ‘shall’ and vice versa. The intent and purport of the order are clear and while the SITwould be perfectly within its rights to disagree with my report, I don’t apprehend that they will ‘discard’ it or not place it before the court, if there is a disagreement.

The riot victims are both angry and confused as how in its final order the court has placed full faith in the same SIT with whose report it was deeply unsatisfied until a few months ago and had thus asked you to carry out an independent evaluation of evidence and other facts?
There is a clear misunderstanding here. The court appointed the SIT for the purpose of conducting the investigation and simultaneously appointed an amicus. The purpose was to see that an independent mind would look at the reports of the SIT. It is in this light that the amicus was asked on 5 May to give his assessment. This did not mean ‘dissatisfaction’ or any lack of confidence in the SIT, if that is being implied. It only meant the court wanted to have an independent perspective.

What are the broad points on which you have differed from the SIT on what constitutes as prosecutable evidence?
I decline to answer that question as our reports remain confidential as of now. However, I must make it clear that an independent assessment was asked for and was given. When such an exercise is carried out, points of difference, where they exist, would be clearly stated.

Has the court given precedence to the SIT report over yours and thus by doing so nullified the findings therein?
Under the CrPC, it is the investigating agency (in this case, the SIT) that is required to file its report. The amicus is not an investigating agency. He is a lawyer who has given his independent assessment. The court has considered the view of the amicus to be relevant, and that is why the SIT is to consider the amicus’ report.

So can we sum up the situation by saying that hereafter your report will not only act as the conscience keeper of the SIT but has also laid down the broad markers for future legal proceedings?
It would be highly presumptuous and improper on my part to view my own report in such terms. However, I can say that the viewpoint of the amicus has been treated by the SC as relevant; and so I believe that it will retain its relevance.